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Holmes v. Toledo Gaming Ventures, LLC

United States District Court, N.D. Ohio, Western Division

June 5, 2017

Kiesha L. Holmes, et al., Plaintiffs Pro Se,
Toledo Gaming Ventures, LLC, et al., Defendants.




         Plaintiffs pro se Kiesha Holmes and Kohrea McKinney sue Defendants Toledo Gaming Ventures (Hollywood Casino) and Casino Security Manager Milissa Winter for race discrimination in violation of 42 U.S.C. § 1981 and Ohio Revised Code § 4112.02 (Doc. 21). Specifically, Plaintiffs claim Winter discriminated against them by (1) treating them in a “markedly hostile” manner, and (2) ordering them to leave the casino in retaliation for making a complaint of race discrimination by another casino employee (Doc. 21 at 19-21). Defendants move for summary judgment (Doc. 46), Plaintiffs oppose (Doc. 54), and Defendants reply (Doc. 62). This Court held a Record Hearing on April 27, 2017, during which it heard testimony and argument related to the casino surveillance video (Doc. 69). (The video is visual only with no sound.)


         The following facts are undisputed, unless otherwise noted. Holmes, her daughter McKinney, and McKinney's fiancé, Dwann Moore, arrived at Hollywood Casino shortly after midnight on January 2, 2016 (Holmes Dep. Tr., Doc. 46-2 at 49). At around 3 AM, they approached the Tarzan slot machine area, but all the slot machines were in use (Doc. 46-2 at 50; McKinney Dep. Tr., Doc. 46-3 at 40). Some casino patrons were playing more than one machine at a time, and others leaned chairs against the machines to reserve them while leaving the slot machine area (Doc. 46-2 at 50-52, 63; Doc. 46-3 at 39-40). Holmes and McKinney observed these practices, as did a white woman who was also waiting for slot machines (Doc. 46-2 at 50; Doc. 46-3 at 38-39). The other woman asked Security Officer Ryan Spencer whether patrons were allowed to play two machines at once (Doc. 46-3 at 39-42). Spencer responded that he believed this was okay, but he would have to check with a manager (Doc. 46-3 at 41-42).

         McKinney was standing close enough to hear the conversation between the other woman and Spencer (Doc. 46-3 at 39-40). After Spencer answered the woman's question, McKinney approached him and asked whether patrons were also allowed to lean their chairs against the machines to reserve them (Doc. 46-3 at 40). Spencer responded with a rhetorical question along the lines of “You wouldn't want them to piss on their [sic] self, would you?” -- or perhaps “You wouldn't want nobody [sic] to piss at the machine, would you?” -- apparently suggesting that patrons reserved slot machines in this way while leaving the casino floor to use the restroom (Doc. 46-3 at 40, 42, 45, 56). Spencer walked away, and McKinney reported Spencer's comment to Holmes (Doc. 46-2 at 67-68).

         When Spencer returned to the slot machine area a few minutes later, Holmes and McKinney confronted him about his unprofessional behavior. Holmes complained that Spencer had been polite to the white woman but disrespectful to her daughter, who is black (Doc. 46-2 at 67-68, 70; Doc. 46-3 at 48-49). Spencer listened to Holmes' complaint, apologized, and left (Doc. 46-2 at 67; Doc. 46-3 at 49). He then reported to Winter, his manager, and admitted he had used the word “piss” to a customer (Winter Dep. Tr., Doc. 46-6 at 6). Before Winter could discuss the incident further, she was called to the Player Services desk to respond to a customer (Plaintiffs)complaint (Doc. 46-6 at 6).

         Meanwhile, Holmes, McKinney, and Moore discussed what had happened and decided to make a complaint about Spencer's behavior (Doc. 46-2 at 73; Doc. 46-3 at 54). They approached the Player Services desk, and Winter was called down to the casino floor to speak with them (Doc. 46-2 at 79; Doc. 46-3 at 55). She was accompanied by another security officer (Doc. 46-2 at 81; Doc. 46-3 at 55). Holmes and McKinney claim that Winter seemed agitated, like she “was on a mission” (Doc. 46-2 at 84; Doc. 46-3 at 55). Winter acknowledges she was “aggravated” by her conversation with Spencer about his behavior, but she denies allowing her irritation to spill over into her interaction with Holmes, McKinney, and Moore (Doc. 46-6 at 8).

         McKinney described her encounter with Spencer and complained that Spencer had been polite to a white patron but “very rude and disrespectful” to her (Doc. 46-3 at 58). Winter responded that the conduct described by McKinney was inappropriate and unprofessional, and she did not condone his use of the word “piss” (Doc. 46-3 at 58; Doc. 46-6 at 6). Holmes then interjected and explained that “what really bother[ed]” her was how Spencer treated the white patron differently from her daughter, who is black (Doc. 46-2 at 82). The parties dispute the exact wording of Winter's response, but she said either that she was sure Spencer's behavior had nothing to do with race (Doc. 46-2 at 86-87; Doc. 46-3 at 60), or perhaps that the casino does not hire racist individuals because it is a customer service business (Doc. 46-4; Doc. 46-6 at 6). The parties agree that Plaintiffs then replied, in unison, either “of course you would say that” or “of course you don't think it's racist” (Doc. 46-2 at 88; Doc. 46-3 at 60; Doc. 46-4).

         The parties also agree that Winter then asked Holmes, McKinney, and Moore to leave the casino. But they vehemently contest how and why she asked them to leave. Holmes and McKinney claim Winter declared “well, since you're going to make it racial, get out” (Doc. 46-2 at 82; Doc. 46-3 at 60, 71). They believe Winter ejected them because they made a complaint about racial discrimination. Winter, on the other hand, contends Holmes and McKinney were being loud and drawing attention to the confrontation at the Player Services desk (Doc. 46-6 at 9-10). She says she asked them to leave for security reasons, as Spencer was still scheduled to work for the rest of the night, and she did not want to risk another incident if he encountered Holmes or McKinney again on the casino floor (Doc. 46-6 at 10). She denies saying “if you're going to make it racial, get out” (Doc. 46-6 at 10).

         As Holmes, McKinney, and Moore began to walk away, Winter stopped McKinney and asked to see her photo ID (Doc. 46-2 at 87; Doc. 46-3 at 66; Doc. 46-6 at 7). Casino policy requires staff to check the identification of any patron who appears to be under age thirty, though the parties dispute whether Winter explained this policy at the time (Doc. 46-2 at 91, 93; Doc. 46-3 at 68; Doc. 46-6 at 7). McKinney retrieved her driver's license from her purse but did not hand it to Winter. Instead, she held the license up near her face (Doc. 46-2 at 90; Doc. 46-3 at 68-69). Winter contends McKinney held the license so that her finger obscured the photo and date of birth (Doc. 46-6 at 7). After Winter checked McKinney's license, McKinney, before leaving, headed to cash out a gambling ticket (Doc. 46-2 at 95; Doc. 46-6 at 8; see also April 27, 2017 Hearing Transcript). Winter and the other security guard accompanied Holmes, McKinney, and Moore to the casino ATM machines (Doc. 46-2 at 103).

         While McKinney was cashing out her ticket, Holmes made a comment about knowing brothers in Las Vegas. The parties dispute exactly what was said. Holmes says she asked for Winter's name and told her she planned to report her to the brothers who own the Hollywood Casino in Las Vegas --believing, mistakenly, that they also own the Toledo establishment (Doc. 46-2 at 98-99; Doc. 46-3 at 67, 74). Winter, however, claims Holmes threatened that she knew brothers who would “take care of” Winter (Doc. 46-4; Doc. 46-6 at 6, 8, 11).

         Winter and the other security guard followed Holmes, McKinney, and Moore to the exit (Doc. 46-2 at 104). McKinney alleges Winter followed so closely behind her that she “walked up on” McKinney's heels (Doc. 46-3 at 76-77). McKinney also alleges that she turned around and asked Winter not to follow her so closely (Doc. 46-2 at 105; Doc. 46-3 at 76, 78). McKinney claims Winter responded by saying she could do “what she want, how she want, when she want” (Doc. 46-3 at 78). Winter denies these allegations (Doc. 46-6 at 9, 11). The casino surveillance tape does not show Winter walking closely behind McKinney, nor does it show McKinney turning back to address Winter as the group approached the exit (see Doc. 66).

         Later that day, Spencer received a “verbal counseling” about using professional language when interacting with casino patrons, which was noted to ...

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